Hems v Clemans [2009] EWCA Civ 672

Application for permission to appeal, with appeal to follow, order concerning enforcement in ancillary relief proceedings. Application granted and matter remitted back to county court.

The husband and wife had compromised their financial claims whereby the wife would pay the husband a lump sum to remain in the matrimonial homes and the father agreed to a range of undertakings to contribute to their children’s education and other matters. The appellant claimed that the respondent had not met those obligations and it was accepted that he was in arrears and a hearing to enforce was adjourned. The next hearing in July 2008 was before another judge who created agreements, in place of the undertakings, concerning the arrears and the payment arrangements such as provision of receipts. In March 2009 the appellant returned to the judge for enforcement who had no note of the order. The husband now claimed that he had paid the sums due and that he was now free from his undertakings.

In allowing the appeal, Wall LJ calls the husband’s argument that he does not have to pay as he has been discharged from his undertakings as “palpable nonsense”. He goes on to conclude that the order of July 2008 has caused the muddle and so that was set aside and the matter remitted back to the county court. He also makes comments about the need for judicial continuity in such cases._____________

Lord Justice Wall:1. This is an application which came before us by reason of an order made by Ward LJ on 7 April 2009. The applicant, Mrs Clemans, seeks permission to appeal against an order made by HHJ Tyzack QC, sitting in Exeter on 4 July 2008.

2. In order to explain how the matter came before HHJ Tyzack, however, it is, I think, necessary to go back in time. The applicant, Mrs Clemans, was Mrs Hems and was married to Dr Hems, and they have three daughters, L, S and R; now aged respectively 18, 15 and 12. The eldest daughter, we are told, is now doing her A levels and, subject to grades, has a place at university; the second child will be taking her GCSEs, and the third child is in her first year at secondary school.

3. Before the district judge, on 4 January 2007, the parties were able to compromise their respective financial claims. In essence, Mrs Clemans remained in the matrimonial home; she paid Dr Hems out for his interest in that property and transferred various policies to him. As a consequence, as between the two of them, it was a clean break. However, there was a very clear and substantial agreement in relation to their three daughters. Dr Hems agreed to continue paying pocket money for the children on the current basis with various top up costs, and he also agreed that he would pay a sum towards the outstanding school fees for the eldest child on the basis that Mrs Clemans paid a similar amount. He agreed also to pay for various photographs and there was a deduction permitted from the lump sum which Mrs Clemans was due to pay to her former husband.

4. Importantly for our purposes, Dr Hems also gave five undertakings to the court on that occasion. He was to pay 50% of the cost of music lessons for each child, to include exam and accompaniment fees (receipts to be provided by Mrs Clemans); he was to pay 50% of the costs of any school, guide and ranger trips for each child of the family (receipts to be provided by Mrs Clemans); and he was to pay 50% of the reasonable costs of providing school uniforms and equipment as required by the three children each year (receipts to be provided by Mrs Clemans). He was also to pay 50% of any tuition costs for R in relation to her sitting the 11 plus exam (receipts to be provided by Mrs Clemans), and he was also to take out life cover with a suitable insurance company agreed by Mrs Clemans and to include critical illness and redundancy cover sufficient to cover the total cost of his obligations to the children under the terms of the order. In the alternative, he was to use his pension, in whole or in part, for that purpose; and he was to meet all premiums due under any such insurance policy until his obligations to the children under the order had come to an end. He was also to provide Mrs Clemans with a copy of the policy and the annual confirmation that the premiums had been paid and to indemnify her in the event that he did not comply with his obligations, and so on.

5. On those bases, and on Mrs Clemans’s undertaking to use her best efforts to secure his release from liabilities under the mortgage against the former matrimonial home, she agreed to pay him a lump sum; she agreed to transfer the policies to him and, as I say, there was to be a clean break between them.

6. However, by paragraph 5 of the order, the parties having reached agreement in writing to this effect, Dr Hems was to pay or cause to be paid to her -- that is Mrs Clemans -- periodical payments for the benefit of the children of the family, who were then named, at the rate of £177 per child per calendar month payable by standing order monthly on the first day of each month, and to continue until “each child shall respectively attain the age of 18 years or complete full time secondary education, which ever is the later or further order of the court”, and the level of payment under -- that is, £177 per child per calendar month -- was to be increased by reference to the retail prices index.

7. There was also an order that Dr Hems was to pay, by way of child maintenance for S, a sum equal to 50% of the school fees and extras, to be limited to luncheon and bus costs, drama, lessons and exams, and these were to be subject to review if S remained at that particular school. There was liberty to apply.

8. Now there is a very substantial dispute. Before I go on I should say I think that was a consent order, and clearly a carefully negotiated order. Unfortunately it has caused a great deal of trouble. There is a substantial dispute between the parties. Dr Hems, I think, would take the view that his obligations under that order have been honoured and that the monies he paid by way of the CSA (the Child Support Agency) which subsequently came into force have met his obligations under the order. Mrs Clemans powerfully disagrees, and the consequence was that she applied to the court to enforce the undertakings which Dr Hems had given. That application came initially before HHJ Wildblood on 4 April 2008. HHJ Wildblood had before him an application by Dr Hems to be released from the undertakings which he had given, but the order records that Dr Hems stated that he did not wish to pursue his application to be released from the undertakings and that application was accordingly dismissed. The judge, however, adjourned the substantive application by Mrs Clemans to allow Dr Hems to produce to her documentary evidence of the manner in which he said he had satisfied his fifth undertaking in relation to the consent order, that undertaking relating to the life insurance policy which Mrs Clemans says has never been taken out. The adjournment was also to allow Mrs Clemans to produce documentary evidence of the failure to pay money and other matters which she alleged against Dr Hems.

9. Dr Hems accepted that prior to the discharge of the order for periodical payments as a result of the child support payments the payments were indeed in arrears and that the sum of £443 remained outstanding under that order prior to its discharge. He agreed to pay that sum by 11 April 2008. On that basis, as I have said already, the application to be discharged from the undertakings by Dr Hems was dismissed, but the substantive application to enforce was adjourned, to be restored preferably before HHJ Wildblood. If not restored before a given date, namely 4 June 2008, it was to be discharged. There was also an order relating to the cost of the transfer of property order to which I have already referred.

10. Most unfortunately, and for reasons we do not understand or know, the application did not come back before HHJ Wildblood; it came before HHJ Tyzack, and, even more unfortunately, we do not have a copy of the transcript of the judgment which the judge gave at the conclusion of the hearing. This is for the simple and, alas, all too common cause that it has been lost by the court. All we have is the transcript of the dialogue between Mrs Clemans and the judge, which I do propose to invite the judge to reread because it does not read at all happily. The judge seems to have adopted a number of critical observations about Mrs Clemans and involves himself in the question of contact. In particular he raises the fact that the girls were not seeing their father, in a way which really had nothing to do with the application before the court. The matter is compounded by the fact that the order made by Judge Tyzack has been clearly subject to different interpretations by the two parties. Speaking for myself and reading it carefully, it does now seem to me, from the plain language of it, that what the judge intended to do was, in effect, and I paraphrase, to replace the undertakings given by Dr Hems with agreements; and so the first substantive paragraph of the recital reads:

“Upon Mrs Clemans agreeing to provide Dr Hems with the receipts referred to in paragraphs 1-4 of the undertaking given by Dr Hems of the January 2007.” [Slip: the order is for 1 July when it plainly should be for January]

That is 50% of the various figures that I gave earlier in this judgment: music lessons, school, guide and ranger trips, uniforms and equipment and tutor costs. She was to provide the receipts from those and Dr Hems was to pay 50% of the receipts within fourteen days.

11. Speaking for myself, I would have thought that was pretty clear. As my Lord, Elias LJ pointed out within the course of argument, what on earth was the point of Mrs Clemans providing Dr Hems with receipts if he was not going to pay them? There was then a question of arrears, which Dr Hems agreed had been built up, and he agreed to pay them off, and we are told, I think, this is common ground that he has done so. So that is the second recital.

12. The third recital was that Mrs Clemans agreed to provide Dr Hems with the receipts referred to in the four undertakings we have already discussed at the end of each school term, and Dr Hems agreed that, should he for any reason be unable to discharge his financial obligations to his children under the order of 4 January i.e. those obligations still continued, he would take whatever steps are required to ensure that such obligations would be discharged from his pension arrangements with the Norwich Union and GEC Marconi. And, on the basis of those recitals and agreements, Dr Hems was released from the undertakings which he had given to the district judge and no order was made as to costs.

13. Now there is a dispute between the parties; it is twofold. First of all, Mrs Clemans says Dr Hems has not paid under the order; secondly, he has not paid under his agreements. Dr Hems retorts verbally in the (inaudible) of disagreement, “well I have paid; I have paid the CSA; I have always paid my obligations and I have been released from the undertakings, therefore I do not have to pay half the bills which have been presented to me since 4 January 2008.” Well, as my Lord, Thorpe LJ pointed out in argument, the mere fact that Dr Hems has been released from the undertakings does not mean -- and cannot under any interpretation of the order, it seems to me, be taken to mean -- that he is released from his obligation to pay. Of course he maintains his obligations to support his daughters. It may be that he has done so; that is a matter which will have to be sorted out in due course, but the order, it seems to me, is absolutely plain: he is obliged to pay.

14. We are told by Mrs Clemans today that she went back to HHJ Tyzack on 20 March 2009. Unfortunately the judge could not recall what precisely was meant by the order of 4 July. His notebook was not particularly informative and, of course, there was no court order. Speaking for myself, I do not wish to imply any criticism of him for failing to record precisely what he had meant in the order which itself is not drawn with the clarity perhaps with which it should have been.

15. So he adjourned the matter further and he adjourned it for Dr Hems to establish via the CSA if he could, that the CSA payments met his obligations to the children; and for Mrs Clemans to establish that monies were due under the order made by the district judge, and that matter remains outstanding.

16. It is doubly unfortunate that this is the case. It should be possible to agree the figures; it should be possible set out what they are, but I have some sympathy for Mrs Clemans if Dr Hems says, “well, I don’t have to pay under the order of 4 July because I have been discharged from honouring my undertakings and therefore I don’t have to pay.” That is palpable nonsense. I still hope, however, that it will be possible for the parties to reach agreement. It is in their hands to do so because, if they reach agreement and the figures are agreed, then the court has no need to become involved; there is no need for any further hearings and there is no need for any further court involvement. But if the parties cannot agree, or if they take bad points on the form of the order, then clearly the court will have to sort it out. It is not, of course, for this court to do so. This court cannot possibly become engaged in the process of deciding what the evidence is; hearing the evidence; listening to cross-examination; looking at the papers; dealing with the figures and coming to a conclusion. That must be done on the ground.

17. So the question really is what we must do and what we should do, and I have come to the view that, really, the muddle in this case has, I regret to say, been largely created by the order of 4 July. It is a great pity that there has not been judicial continuity in this case. It is a great pity either that the application was not made back to the district judge or HHJ Wildblood was unable to take the hearing on 4 July. Speaking for myself, since the matter clearly must be dealt with on the ground, the proper course here would be to give Mrs Clemans permission to appeal; to allow her appeal; to set aside HHJ Tyzack’s order, and to direct that any application by her to enforce the order of the district judge should be made to the district judge sitting in the Torquay and Newton Abbott County Court. Likewise any application by Dr Hems to vary the order made by the district judge should likewise be made to the district judge sitting in the County Court. By this means it seems to me the district judge will be able to go back, if need be, to his original order; to look at all the events which have occurred since; and to decide what the proper figure is, if any, which Dr Hems owes. If the matter goes back to HHJ Tyzack I fear there may be further confusion, and it is common knowledge that in such cases it is the district judge on the ground who usually deals day in, day out with applications of this nature and who, therefore, will be able to deal with it swiftly and, one hopes, surgically.

18. I repeat, however, that this is a matter which should be capable of agreement. We are here dealing with the support of three daughters, and the figures are not particularly rocket science. The bills no doubt exist. The bills, we are told, have been presented; the figures ought to be reasonably clear. The figure that Dr Hems is paying to the Child Support Agency ought to be reasonably clear, and it should be possible for the parties, both of whom are highly intelligent people, to come to an agreement about what is owed and what is not owed; but, as I say, if they are able to reach that agreement then there will be no need for any application to vary, and there will be no need for any further application to enforce. However, if they are unable to agree then any application to enforce and any application to vary must, in my view, be dealt with on the ground by the district judge.

19. I would therefore grant permission to appeal. I would allow the appeal. I would set aside HHJ Tyzack’s order, and I would direct that those two applications, if made, should be listed as soon as possible and, in default of agreement, should be listed before the district judge sitting in Torquay and Newton Abbott.

Lord Justice Elias: 20. I agree.

Lord Justice Thorpe: 21. I also agree. For the avoidance of doubt, if any could possibly survive my Lord’s clear judgment, the effect of the order which we make will be to achieve the division of financial responsibility for these girls, as between their parents, in accordance with the original order of the district judge, throughout and until such time as it is varied. So, by setting aside the order of 4 July, we do not create any sort of temporal interval in the father’s responsibility to make payment. The other small point I would make is that all the difficulty has been created by the drafting of the order of 4 July. I very much doubt that that order was drafted or indeed approved by HHJ Tyzack. It has all the appearance of an order drafted no doubt by an experienced member of court staff. But it is vital, in any case where the wording of an order has to be precise and detailed, that the judge who makes the order should approve its final form before it is prepared, and I am quite sure that HHJ Tyzack, with all his experience, did not appreciate that the conclusion he reached on 4 July was then expressed in such ambiguous language.